Agencies may need court order to trace social media messages

Bengaluru | New Delhi: The upcoming regulations to monitor social media content will require law enforcement agencies to obtain a court order before they can direct internet platforms to trace messages back to the originator, according to two government officials aware of the draft rules.

The new rules, which will change the way social media companies monitor and take down content on the request of law enforcement agencies, are expected to be finalised by the end of the month, said one official cited above.

Social media intermediaries — with more than 5 million registered users — have to trace the original sender of a message when asked by a government agency armed with an order from a judicial magistrate court or a higher court. The rules will hit platforms such as Facebook, WhatsApp, YouTube, Twitter, ShareChat and TikTok.

Concerns of Misuse
“Any request for traceability can be misused, commercially, politically or technically. Traceability is a privacy violation, so provisions under the Puttaswamy judgment which permit such violation under certain conditions have to be applied, otherwise it won’t stand legal scrutiny,” the official said.

Supreme Court’s Privacy judgment of 2017 following a petition by former Karnataka High Court Judge K S Puttaswamy states that the government needs to declare a specific objective for collecting personal data, the authorities ordering this and, what procedures it will follow.

The Ministry of Electronics and IT (MeitY) will seek the advice of the law ministry, which will vet the guidelines, according to the government official. Email queries sent to MeitY did not elicit a response.

Currently, the Information Technology (IT) Act provides a legal safeguard to technology platforms for the content shared on their platform.

The earlier proposal on amending the intermediary rules of the IT Act released in 2018 did not have the condition of requiring a court order to trace back messages to senders on platforms. This had led to fears of unaccountable censorship by the government. Facebook-owned encrypted messaging platform WhatsApp has resisted the demand for traceability citing privacy of its users. “If the intermediary guidelines mandates a court order to enable traceability, it follows the law under Puttaswamy judgement, but still means that traceability as a feature needs to be enabled by platforms,” said Nikhil Narendran, Partner at Trilegal.

The new draft also suggests that companies should collect phone numbers of all their users and verify it at least once every year. It adds that if the user is an organisation, social media companies can use an alternate verification method.

“We can’t force it but it’s just a step towards some culture of responsible online behaviour since we feel that anonymity is driving rampant trolling. And perhaps if the troll is unverified then it may reduce his or her credibility,” a source said.

Democratic presidential candidate Joe Biden in the US also wants to get rid of the legal protection that has shielded social media companies from liability for users post. Significant social media platforms will also have to use technology or automated tools to proactively identify and remove information showing children in sexually explicit acts or that which promotes terrorism. The earlier draft had mandated proactive filtering for ‘unlawful information’ — which was seen as too vague and wide.

MeitY has also defined social media platforms as those enabling online interaction between two or more users and allowing them to create, share or upload information. It has exempted email services, browsers, online encyclopedias, search engines or online storage services from the rules, apart from intermediaries engaged in business transactions.

The government has also not budged on the requirement for significant social media companies to have a permanent registered office in India with a physical address and appointing a nodal officer for coordinating with law enforcement agencies round the clock.

The new draft has however added that platform can either be a company incorporated under the Companies Act or be a subsidiary of a foreign company. It has also added that all significant social media companies will appoint a grievance officer located in India along with a nodal officer and publish an India-specific transparency report twice a year. MeitY told the Supreme Court in October last year that it would notify the Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 by January 15.